State v. Fell

Court of Appeals of Arizona, Second Division

April 4, 2017

The State of Arizona, Petitioner,v.Hon. Howard Fell, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Bryan Mitchell Lietzau, Real Party in Interest.

Steven
R. Sonenberg, Pima County Public Defender By Abigail Jensen,
Christopher Lynch, and Abigail Okrent, Assistant Public
Defenders, Tucson Counsel for Real Party in Interest

Chief
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Howard and Judge Vásquez concurred.

OPINION

ECKERSTROM, Chief Judge:

¶1
In this special action, the State of Arizona seeks relief
from the respondent judge's order precluding recordings
of jail telephone calls and visits involving the real party
in interest, defendant Bryan Lietzau, and the judge's
order precluding a transcript purportedly showing text
messages between Lietzau and the minor victim. Because the
state has not asserted it would have presented any precluded
recordings at trial absent the respondent's order, we
decline to accept jurisdiction to consider that issue.
However, because the respondent erred by concluding the state
could not present sufficient evidence to authenticate the
transcript pursuant to Rule 901, Ariz. R. Evid., and the
state has no remedy by appeal, we accept jurisdiction to
address that issue and grant relief. See Ariz. R. P.
Spec. Actions 1(a), 3(c).

Background

¶2
Lietzau was charged with six counts of sexual conduct with a
minor under the age of fifteen based on his alleged sexual
relationship with then thirteen-year-old S. in 2014. The
state disclosed a document purporting to be a transcript of
text messages between Lietzau and the victim. Lietzau's
probation officer had manually transcribed the messages from
a smartphone he had taken from Lietzau on December 10, 2014.
The transcript consists of dozens of messages sent over a
four-day period from December 6 to December 10, 2014, and
reflects a romantic and sexual relationship between the
participants.

¶3
Lietzau moved to exclude the text-message transcript, arguing
inter alia that the state could not provide sufficient proof
the messages were between him and the victim and thus could
not comply with Rule 901. Lietzau asserted both he and S. had
denied messaging each other and that a third party, T., had
used Lietzau's phone to message S.-which T. had
corroborated during an interview. Lietzau also pointed out
that the messages were not found in a later forensic
examination of the phone, that the probation officer could
not recall the program he had used to view the messages on
the phone, and that the service for the phone was registered
to Lietzau's mother.

¶4
The state responded that the probation officer had claimed
Lietzau told him the messages were from S. and that the
messages were consistent with other evidence. The state noted
that S. had admitted having a sexual relationship with
Lietzau and that she would testify about exchanged text
messages between them. Additionally, according to the state,
recordings of jail calls showed Lietzau had asked family
members to contact S., had given her a phone, and referred to
the fact he had carved "[S.] is mine" on his arm.
The state also noted that Lietzau had identified himself in
one of the messages. After hearing argument, the respondent
judge granted Lietzau's motion, stating the transcript
was precluded because the phone was not in Lietzau's name
and "other people had access to it." This petition
for special action followed.

¶6
"To authenticate an item of evidence, the 'proponent
must produce evidence sufficient to support a finding that
the item is what the proponent claims it is.'"
Forde,233 Ariz. 543, ¶ 74, 315 P.3d at 1220,
quoting Ariz. R. Evid. 901(a). The trial court
"does not determine whether the evidence is authentic,
but only whether evidence exists from which the jury could
reasonably conclude that it is authentic." State v.
Lavers,168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). If
that standard is met, any uncertainty goes to the weight
rather than the admissibility of the evidence. State v.
George,206 Ariz. 436, ¶ 31, 79 P.3d 1050, 1060
(App. 2003).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&para;7
"[A] flexible approach is appropriate, allowing a trial
court to consider the unique facts and circumstances in each
case-and the purpose for which the evidence is being
offered-in deciding whether the evidence has been properly
authenticated." State v. King,226 Ariz. 253,
&para; 9, 245 P.3d 938, 942 (App. 2011), quoting State v.
Haight-Gyuro,218 Ariz. 356, &para; 14, 186 P.3d 33, 37
(App. 2008) (alteration in King). A party can
authenticate evidence by various means, including
"[testimony of a witness with knowledge" or
"[distinctive characteristics and the like, " such
as the "contents, substance, internal patterns, or other
distinctive characteristics" of the evidence. Ariz. R.
Evid. 901(b)(1), (4). Telephone conversations, which are
analogous to text messages, may also be authenticated by
"evidence that a call was made to the number ...

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